By David Cohen
On Friday, June 27th, Office of Federal Contract Compliance Programs (OFCCP) Director Catherine Eschbach sent a letter to federal contractors asking them to voluntarily submit information to the agency explaining their efforts to “wind down” compliance with Executive Order (EO) 11246. Before I address the letter and my recommendation to our clients and the broader contractor community, it’s important to get some facts clear.
First, with the revocation of EO 11246, the president removed OFCCP’s authority to conduct audits and enforce anything related to discrimination on the basis of race, ethnicity and sex. Without EO 11246, OFCCP cannot point to any statute or executive order giving it such authority. To my knowledge, OFCCP was not issued authority to monitor and enforce EO 14173. The bottom line is that OFCCP lacks any authority to audit, review, enforce, etc., anything related to non-compliance with Title VII or EO 14173.
Second, Congress has proposed stripping all funding from OFCCP at the end of this fiscal year. Therefore, OFCCP will be closed effective October 1, 2025. Director Escbach’s letter states that contractors will have 90 days from the date of the letter to voluntary submit information to OFCCP. If my math is correct, that takes us to September 25th, merely six days prior to the agency being shuttered.
Third, if OFCCP lacks any authority to enforce EO 14173 and there are no corresponding regulations attached to EO 14173, OFCCP would not be bound to any privacy requirements and would most certainly be subject to Freedom of Information Act (FOIA) requests. Therefore, one MUST assume that ANYTHING voluntarily submitted to OFCCP would most likely be released to individuals/organizations outside of OFCCP.
With the facts on the table, we shall go back to the letter from Director Eschbach. The letter correctly states that EO 11246 was revoked and that contractors were provided a 90-day window to wind down its compliance with the regulations. However, it is important to note that there was nothing illegal about the workforce analytics conducted under 11246 prior to and after EO 14173. The Director specifically suggests that the creation of placement goals, per se, are illegal.
To be clear, a placement goal is not a utilization analysis. There is nothing wrong with conducting utilization analyses, sometimes known as EEO barrier analyses, (using requisite skills availability data) to identify areas where an employer is statistically underutilized to determine where there may be arbitrary barriers to employment. Those barriers may include limited and/or exclusionary recruitment practices or potential evidence of discriminatory employment practices. This is not only legal but suggested under Title VII. Specifically, 709(c) of Title VII states that “Every employer, employment agency, and labor organization subject to this subchapter shall (1) make (emphasis added) and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed.” The bottom line is that context matters. Conducting these analytics is not illegal as long as they are not used in ways that violate Title VII (i.e. quotas, preferences, set-asides).
The administration has made it clear (and I agree) that employment practices should be merit-based. However, you cannot have merit -based employment practices if those employment practices are discriminatory. Therefore, step one for ensuring merit-based employment is conducting workforce analytics to ensure non-discrimination.
I also found it interesting that in an email to OFCCP staff on March 24, 2025, Director Eschbach suggested that OFCCP and its corresponding regulations violated the law and the Constitution. Three months later, and after her self-described “autopsy” of OFCCP, she now correctly states that OFCCP’s regulations did not violate the law and Constitution. Specifically, her letter states, “Although OFCCP’s regulations expressly prohibited unlawful discrimination or disparate treatment, and the regulatory placement goals should not operate as quotas.” I am glad that the Director came to that correct and accurate conclusion. However, most recently in her June 27th letter, she now suggests that it wasn’t OFCCP that violated the law, but contractors who violated the regulations by imposing placement goals as quotas.
It is unclear what evidence supports this conclusion. Since 2004, OFCCP has conducted 47,813 compliance evaluations, including four years under the first Trump administration, and has not cited a single contractor for using placement goals as quotas. Zero percent! One more point, her letter suggests that broadening your recruitment efforts (key word, broadening) to include more qualified minorities and females is also illegal. As long as those recruitment efforts expand and do not limit the recruitment of particular groups (e.g. Whites and males), I respectfully disagree.
Let’s go back to the letter and the question at hand. The letter asks that contractors, in the next 90 days, voluntarily provide a written description confirming:
- That they have reviewed their EO 11246 affirmative action efforts;
- Whether they believe any modification to employment and recruitment are necessary; and
- If so, what those changes are and steps the federal contractor has taken to modify those practices.
So I will cut to the chase, I do not see any reason nor any incentive for a contractor to submit anything to OFCCP. The letter does not suggest that a contractor will be provided with a safe harbor if it submits information nor does the letter provide any reassurance that the information will be kept confidential and not subject to FOIA. I only see a downside to submitting information at this time.
Signed,
David Cohen
For more information, sign up for our webinar covering this topic, complete with a Q&A, next week.
